Jan / March 2007

legalTAPS
KDN PP 13829/6/2007

The articles in this news-

letter are also available
on our website:
www.taypartners.com.my

Contents

Dismissal for Poor

1
Dismissal for Poor

Performance
Performance
by Sharon Yin

4
Intellectual Property
Assets as Wealth-
Poor performance or its synonymous words into account various factors in deciding whether
Creation Tools and
such as unsatisfactory performance, incapability, there is actual poor performance. Spinner of the
inefficiency or plain inaptitude is one of the main Economy - Part 2
Burden of proof by Lim Pui Keng
grounds in which the employers may dismiss
an employee. However, the correct approach
It is incumbent upon the employers to show 8
in this delicate issue must be addressed, failing evidence on a balance of probabilities and not
which the Court is apt to rule in favour of the
Why not Mediation?
mere allegation that the termination is justified
by Elizabeth Choong
dismissed employee much to the chagrin of on grounds of poor performance. However, a
& Leong Pei Lee
the employers. single act of incompetency or inefficiency does
not warrant the summary dismissal of the said 10
Poor Performance is not Misconduct Per
employee.
Acquisition of
Se
Yang Arif Rajendran Nayagam in Galaxy Portfolio
Properties in Malaysia
It is interesting to note that Yang Arif Mohd Amin by Foreigners - Recent
Sdn Bhd v Suradi Sulaiman (Award No. 158 of
Firdaus Abdullah ruled in Eruthiam Arokiasamy Rulings
2006) [2006] 1 ILR 187, Industrial Court Kuala
v BM Enterprise Sdn Bhd (Award No. 622 of by Lau Lee Jan
Lumpur in his Award quoted the case of Lord
2006) [2006] 2 ILR 852 that : Donaldson in Construction & Allied Trades 11
Technician Union v Brain [1981] 1 RLR 224
“...based on the sole ground given in Restrictions
the Termination Letter, namely “due “the employer has to show why in fact he Emasculated
to your work attitude or lackadaisical dismissed the employee. This is no great by David Lee
attitude,” the claimant had not committed burden upon the employer, since he will
any misconduct to justify a dismissal. A
12
know why he dismissed the employee”.
workman who does not show enough Future Entreprises Pte
care or enthusiasm in his work but Held Ltd v McDonald’s
nonetheless plods on with the work does Corporation
The company had failed to prove the allegations by Pearleen Loh
not necessarily commit misconduct.”
of poor performance against the claimant. In
Whilst the employers do have a legitimate and any event, even if there had been such poor 14
reasonable expectation that its employees performance, there is no evidence that the Do Costs Always
will perform their task in accordance to an company had ever informed the claimant, who “Follow the Event”?
acceptable, reasonable standard, the evaluation is still on probation, of his shortcomings, or had by Naresh Mahtani
of whether an employee is a poor performer is a given him any opportunity to improve himself. In & Connie Yao
very subjective test. Employees do come from the circumstances, the dismissal was without just
different backgrounds and the Court would take cause or excuse.
 Oral or Written Warnings?
It goes without saying that written warnings are the most
compelling evidence to show that the company had informed the
employee of his shortcomings. Employers should also ensure
that the written warning was duly received and accepted by
the employee.
The difficulty with oral warnings is the production of such witnesses
to prove that such warnings were in fact issued. The relevant
witnesses may have since passed away, left the company,
worked abroad, turned hostile towards the company etc.
More often than not, the company will have to incur further
expenses in securing the attendance of these witnesses. As
such, it may turn out to be a very costly affair for the company
in defending the said dismissal.
Faiza Tamby Chik J in Paari Perumal v. Abdul Majid Hj
Nazardin & Ors, High Court of Malaya, Kuala Lumpur [Civil
Appeal No. R2-11-71-99] [2000] 4 CLJ 127 held that the
magistrate erred when she accepted the evidence for the
defendants that they were dissatisfied with the plaintiff’s
performance because nothing to this effect was included in the
statement of defence. In any event, the absence of any warning
letters for unsatisfactory performance supported the plaintiff’s
submission that the allegations regarding his poor performance
were mere afterthoughts.
Is Domestic Inquiry a Pre-requisite?
The Industrial Court in Wearne Brothers Services Sdn Bhd v
Yuen Ah Man (Award 188 of 1982) ruled that:
“It was argued that the allegation against the claimant
being one of inefficiency, it was required of the company
to hold a domestic inquiry as dismissal was effected
as a punishment for his failure to improve his work
2
performance. I am of the view that inefficiency is
not misconduct, which necessitates an inquiry. The
Company Secretary decided to terminate the services of
the claimant based on the feedback from and appraisals
by the managers. In addition, he discussed the matter
with some senior executives. He should have given an
opportunity to the claimant to state his case.”
From the above observation, it is clear that there is no necessity
to hold a domestic inquiry prior to a dismissal for misconduct
solely on grounds of poor performance.
Fair Procedure / Due Process
In Rohimi Yusoff v. Alfa Meli Marketing Sdn Bhd & Anor
[2001] 6 CLJ 177, High Court , Kuala Lumpur, Faiza Tamby
Chik J made an observation of IE Project Sdn Bhd v. Tan Lee
Seng (Award No. 56/198)
“An employer should be very slow to dismiss upon the
ground that the employee is found to be unsatisfactory
in his performance or incapable of performing the
work which he is employed to do without first telling
the employee of the respects in which he is failing to
do his job adequately, warning him of the possibility or
likelihood of dismissal on this ground and giving him
an opportunity of improving his performance. It is for
the employer to find out from the employee why he is
performing unsatisfactorily or warn him that if he persists
in doing so he may have to go. There is no record of
any such warnings. On the contrary I am satisfied that
the Claimant had performed his task to the best of his
ability.”
The Facts of Rohimi Yusoff
The applicant was employed by the 1st respondent (‘the
company’) as ‘Marketing Manager’. Soon after, the applicant’s
employment was terminated. The Industrial Court concluded
that the termination of the claimant was with just cause or
excuse and had dismissed the claimant’s claim. The said
court was satisfied from the evidence that it was because of
the claimant’s inability to generate business for the company
as that was the sole purpose and object of the claimant as
‘Marketing Manager’. Hence, the applicant’s instant application
for an order of certiorari to quash the award and for an order
of mandamus for a rehearing before another chairman of the
Industrial Court.

Held
The claimant was dismissed without any warning and was
working with the company for 10 weeks only. It was too early
to say that the claimant had failed to generate business during
that period.
Therefore, this decision of the High Court in Rohimi Yusoff
had re-emphasized the principle that an employer should
accord sufficient time and opportunity for the employee to
improve, otherwise the employer may be in violation of fair
procedure/due process as discussed above.
... an employer should accord sufficient time
and opportunity for the employee to im-
prove, otherwise the employer may be in
violation of fair procedure / due process ...
The legal principles enunciated in Rohimi Yusoff have been
further entrenched in Sidel Industry (M) Sdn Bhd v Thanusia
Malar Raja Gopal (Award No. 8 of 2006) [2006] 1 ILR 116
and Swai Lin v MRTS-Atlantik (M) Sdn Bhd (Award No. 688
of 2006) [2006] 2 ILR 910 just to name a few more recently
decided cases.
Yang Arif Hariraman Palaya in Steven Ferenc Palos v. Ogilvy
One Worldwide Sdn Bhd & Anor (Award No. 2316 of 2005)
[2006] 1 ILR 61 Kuala Lumpur Industrial Court held that:
(i) taking into consideration the entire evidence, there is
no sufficient evidence to substantiate the claim that the
claimant was guilty of poor performance.
(ii) the claimant had never been told that because of
his areas of weaknesses, i.e. poor performance and
his attitudinal problem, a dismissal of him was being
legalTAPS
considered. At no point did the company ask the claimant
to explain or raise any issue as to whether his attitudinal
problem and poor performance would be harmful to the
harmonious client relationship and the proper functioning
of the company.
(iii) the claimant should have been given every opportunity
to discuss the situation of his work performance before
he was terminated. The company could have given him a
warning in writing and even suspended him before taking
action to dismiss him. This the company failed to do.
Probationers
It is trite law that a probationer enjoys the same rights as a
permanent or confirmed employee and his services cannot be
terminated without just cause or excuse as per the judgment of
the Court of Appeal in Khaliah bte Abbas v. Pesaka Capital
Corp Sdn Bhd [1997] 3 CLJ 827.
Summary
In view of the fact that poor performance does attract the same
consequence as misconduct, the case law has constantly
upheld the principle that the employer should adhere to the
following before taking the drastic step of dismissing the
employee:
(i) informing the employee of the respects in which he is
failing to do his job properly;
(ii) warning him of the possibility or likelihood of his termination
on grounds of poor performance; and
(iii) giving the employee sufficient time and opportunity to
improve his performance on the job.
By Sharon Yin
(sharon.yin@taypartners.com.my)
Sharon practises in the Litigation
and Dispute Resolution Practice
Group.
For further information on this article
or advice on labour and employment
matters, you may contact:
Leonard Yeoh
(leonard.yeoh@taypartners.com.my)
3
 Intellectual Property Assets as Wealth-Cre-
ation Tools and Spinner of the Economy
- Part 2
In the first installment of this two-part article that appeared in which are earning the parties involved in the transactions
the November/December 2006 issue of LegalTAPS, the topic of substantial wealth) - licensing and franchising - will be
management of intellectual property (‘IP’) assets was discussed, discussed here. An overview of what we can expect in the
highlighting the importance of having in place an IP management arena of commercialisation of IP assets in the near future
system at the heart of a corporate body to properly and effectively will be touched upon thereafter.
manage these valuable intangible assets in order to pump
economic vitality through its veins. We also highlighted the
The common forms of commercialising
mechanism of an IP asset management system and how IP
assets are valued using different methodologies. intellectual property assets are

The second and concluding part of the article will discuss some
licensing, franchising and the sale and
of the methods of commercialisation of IP assets currently practised purchase of intellectual property rights.
amongst the more IP-savvy of conglomerates and individuals
in Malaysia and what lies ahead in the area of exploiting and
commercialising IP assets. Licensing

Commercialisation of IP Assets Large multi-national corporations like The Coca-Cola Company

It is understandably easy to neglect the presence of IPs within
the corporate fabric of a company and as a corollary, the value
of IP assets to the overall financial position of a company is
not realised, IP assets being intangible and not as visible a
contributor to the wealth-creation process as their tangible
cousins. Traditional forms of investment and enterprise may
beget dollars and cents on the face of the financial statements
of brick-and-mortar businesses (and will continue to do so) but
the tide has changed on that front as IP assets are proving
themselves to be equally effective wealth-creation tools (if not
more effective).
The common forms of commercialising IP assets are licensing,
franchising and the sale and purchase of IP rights. Getting
the IP assets to work for a company rather to let them remain
in the passive form of paper protection are prudent means of
generating extra income for a company and indeed with trade
marks, commercial use either by the proprietor or licensee is
even vital to the survival of the trade mark in ensuring that it is
not susceptible to being removed, expunged or cancelled on
the grounds of non-use.
(which consistently ranks first place in polls on most valuable
brands in economic denomination) realises value from its
portfolio by exploiting its valuable trade marks through licensing
and marketing agreements. Many other corporations have
also jumped on the bandwagon and realised their IP portfolios
through third party licensing arrangements: Texas Instruments
and IBM are prime examples of corporations which derive
significant additional income from collecting royalties on licensed
IP rights to third parties which are keen to use their patented
innovations in their products. Indeed many large technology
companies and consumer goods manufacturers have
cross-licensing deals in respect of their intellectual assets
(mainly patent on cutting-edge hardware) with their competitors
worth millions of dollars in order to utilise intellectual assets of
each other to generate individual wealth.

Two means of commercialisation of IP assets which are

currently more commonly exploited by entities in Malaysia (and

4
 legalTAPS
What IP rights can be licensed? Trade marks, industrial designs,
copyright, confidential information and know-how etc can be
licensed. It is pertinent to have in place a licence agreement and
possibly a non-disclosure agreement (where sensitive IP rights
are being commercialised) to govern the rights of the licensor
and the licensee vis-à-vis the use of the IP right and how the IP
right can or cannot be used. A licence basically gives permission
to the licensee to perform the acts that are otherwise off limits
to third parties and protected by the exclusive right of the owner
of the IP right (licensor).

Apart from generating extra income to a company, licensing the franchise system involved, the franchisee will undergo a

provides the following commercial benefits :-
(a) for the licensee, it is a way of saving on capital out-lay
in that an entity does not have to incur large sums of
money to set up production units, manufacturing plants or
research and development facilities in order to produce a
period of training where the franchisor’s way of doing things
are taught, for example, standards of quality, service, value,
formulas and specifications for menu items, method of operation
and inventory control techniques.
What types of franchise systems are there? Generally, there are

particular product. It merely has to seek a license from a three main types of franchise systems in practice:-

company with the relevant product or process patent

(a) trade mark/trade name franchise - this system gives the
and/or know-how which is willing to license out its
franchisee the right to manufacture products by utilising
patent/know-how. For the licensor, IP licensing is an
the trade mark, trade name, logo, trade dress and other
income-generating machine;
distinctive elements owned by the franchisor.

(b) a product made under licence translates to savings for

(b) product distribution franchise - this is where the franchisor
the end-users as costly research and development
grants the franchisee the right to sell and distribute
is eliminated from the equation and the costs of labour,
products which are produced by the franchisor.
material, etc are reduced;
(c) business format franchise - the franchisee is given the
(c) IP licensing, particularly in respect of licensing (or cross-
right to use the trade mark, distribute the franchisor’s
licensing) of patents, results in better products being
manufactured goods, and the right to duplicate the whole
developed because further patented features obtained by
business system as adopted by the franchisor. The
license may be added to an existing product;
valuable McDonald’s franchise is shaped on this

(d) a competitive edge may be obtained against competitors concept.

with the improved product as a result of additional

Franchising has tremendous commercial benefits for the
features (acquired through patent licensing) or through
individual (be it the franchisor or the franchisee) which will
an enhanced distribution network already paved by the IP
impact positively upon the economy if harnessed effectively.
right that was acquired for use under licence (trade mark
Briefly, some of the benefits are:-
licensing).
(a) the reduction of risk in a company’s investment in a
Franchising franchise as franchises, being more often than not based
on established and well-known concepts and brands, get
In general terms, franchising is a method of marketing and
up and running faster and see profits more quickly or
distributing based on a two-party relationship between the
inversely, is not as susceptible in going into the red as a
franchisor (i.e. the person or company leasing the rights to the
business which has to start from ground zero in terms of
business name and system) and the franchisee (the person
monetary and goodwill-development.
who purchases it). The rights in question is for the purpose of
conducting a business using the trade marks and trade names (b) increase in the effectiveness of a franchisee’s operation
of the proprietor/franchisor based on a specified system management as leasing a franchise allows a franchisee
(business, marketing and operations strategies), at a specified to tap into a proven managerial know-how base.
location and for a predetermined length of time. Depending on

5
 (c) enable market expansion without the need to invest a
large capital to achieve that result. Let others (i.e. the
franchisees) do the leg-work and try and test the market
is the motto here.
Foreign franchisors who have successfully established
themselves in Malaysia include Kentucky Fried Chicken and
McDonald’s and local franchisors who have successfully made
an impact on the Malaysian business scene and overseas are
Secret Recipe and Rotiboy (which is fast gaining a loyal
following in Thailand).
The Future of Commercialisation of IP Assets
Towards achieving developed nation status, our financial
and accounting sectors have to prepare themselves and
develop a structure to take on more sophisticated forms
of commercialising IP assets. Concepts like “IP-backed
securitisation”, “collaterisation of IP assets” and “mortgaging of
IP assets” may still be alien to or unaccepted by our financial
sector as trading tools but are already accepted (albeit still fairly
recent) forms of securing loans and raising capital in countries
like USA, UK and Japan. Nearer to our shores, our neighbour,
Thailand has embraced such progress. It was reported that from
November 2003, The Small and Medium Enterprises
Development Bank of Thailand will take the value of patents,
trade marks and other IP rights into account when deciding its
lending policy in individual cases (Managing Intellectual Property,
October 2003). The Thai bank has made headways in the financial
scene in this region as being one of the first (if not the
first) to accept IP rights as collateral in loan applications.
How do such innovative concepts of commercialisation of IP
assets work? Perhaps their basic mechanics may be fleshed
out by way of some exciting examples of the form of their use
in USA.
6
Securitisation of IP Assets
In 1997, rock star, David Bowie securitised future royalties to
be earned from his song catalogue by issuing David Bowie
IP-backed bonds to raise capital to the tune of US$55 million.
Further examples of IP-based securitisation loans based on
licensing revenues include a loan granted in 1999 to Bill Blass in
the amount of US$24 million, a loan to Athlete’s Foot of US$33
million in 2003 from securitising its franchise resources and the
securitisation of copyright in a film portfolio by DreamWorks in
2002 which raised US$1 billion to refinance outstanding credit
facilities.
Intellectual property securitisation
is typically possible in respect of
future royalty payments from
licensing of patents, trade marks
and copyrights.
Securitisation is one way in which the “originator” can
raise finance but it requires a substantial revenue
stream derived from IP assets, such as royalty or licence
revenue. Securitisation normally refers to a method of
structuring financing involving the pooling together of
different financial assets with identifiable and predictable
cashflows, transferring the same to investors and the
subsequent issuance of securities backed by those
assets. In a nutshell, the concept involves the selling by the
“originator” (the entity whose receivables was transferred to
the issuer) of its rights in the cashflow-generating asset(s)
to the issuer in return for a lump sum payment backed by
the IP-based security.
IP securitisation is typically possible in respect of future
royalty payments from licensing of patents, trade marks and
copyrights.
Collateralisation of IP Assets
This is another form of commercialisation of IP assets to raise
financing and one which may prove to be less complicated than
IP securitisation. This form of financing allows a company or
individual to leverage the asset value in patents, trade marks,
copyrights, trade secrets, know-how etc (that is, the IP assets
themselves, rather than the revenue stream derived from the IP
assets, as is the case with IP securitisation) to raise capital.

In IP collateralisation, a lender extends credit based on the IP
asset portfolio held by an individual or company, particularly
the disposal value of the IP that is owned.
Recent examples of collateralised transactions involving IP
assets is a US$300 million loan made to Michael Jackson by
Fortress Investment Group which was secured by a song
catalogue that includes Beatles’ hits as part of the collateral to
allow the one time King of Pop to refinance hundreds of millions
of dollars in loan to keep him from the brink of bankruptcy.
Part of a loan made to BCBG Max Azaria Group, a manufacturer
and retailer of apparel, footwear and accessories was secured
by a guarantee issued by a credit enhancement firm based on
collateralisation of its trade marks.
In the UK, in the form of pledging of registered trade mark, a
registered trade mark may be pledged to secure a claim and
this is put on a statutory footing by the UK Trade Marks Act in
that a pledge can be created by making an entry concerning
the pledge in the register on the basis of a notarised agreement
for the establishment of the pledge between the proprietor of
the trade mark and the pledgee.
It allows for a registered trade mark to be encumbered with a
pledge such that the person for whose benefit the pledge is
established (the pledgee) has the right to satisfaction of the
claim secured by the pledge against the pledged trade mark.
If a claim secured by a pledge is not satisfied, the pledgee is
entitled to satisfy the claim by way of selling the encumbered
trade mark at a compulsory auction.
Conclusion
In conclusion, it can be seen that IP assets when managed and
used properly are indeed valuable tools to generate economic
growth. It is reassuring that the government is giving due
legalTAPS
recognition to this concept by educating the public and industry
about IP first and foremost and of the potential in store in
harnessing IP assets to exploit their full capabilities as financial
tools and not merely viewing them as cost-intensive passive
tools to protect against infringement. In short, IP assets can
be used as both a shield and a sword by those who know how
to wield them to derive their fullest potential.
... the (Malaysian) government is giving
due recognition ... by educating
the public and industry about IP ...
and of the potential in store in
harnessing IP assets to exploit their full
capabilities as financial tools ...
It has been said that intellectual capital has emerged as a
leading asset class amongst industrialised nations around
the world which have gradually shifted from being reliant
on their labour and manufacturing intensive sectors to
knowledge-based sectors. Therefore, with knowledge of
this growing trend, our nation must act to push forward the
economic frontiers as we know them for the betterment of the
wealth-generation process of individual corporations and the
nation at large. The general mindset has to be geared towards
adapting to the innovative trends in the financial arena and
laying the foundation and structure to prepare for the coming
tide of new forms of wealth-creation tools and structures to
our shores.
By Lim Pui Keng (puikeng.lim@taypartners.com.my)
Pui Keng is a Partner in the Intellectual Property and
Technology Practice Group with focus on IP protection,
litigation and enforcement.
For further information and advice on IP and Technology
laws, please contact:
Linda Wang (linda.wang@taypartners.com.my)
Lim Pui Keng (puikeng.lim@taypartners.com.my)
7
 Why not Mediation?
Mediation is a voluntary process whereby an impartial third
party known as the ‘mediator’ assists parties in disputes
to resolve their differences and work towards an amicable
settlement. One can only proceed with mediation if all the
parties agree to it.
The Malaysian Bar Council has taken measures to encourage
‘mediation’ as an alternative dispute resolution (‘ADR’)
mechanism between parties by setting up an ADR Committee
entrusted with the task of training members of the legal
profession to be mediators. In 1999 the Bar Council also set
up the Malaysia Mediation Centre (‘MMC’) in Kuala Lumpur
and Penang. The MMC is a body established with the objective
of promoting mediation as a means of ADR, and to provide
a proper avenue for successful dispute resolutions. These
Centres operate under a set of Mediation Rules and Code of
Conduct formulated for a variety of matters relating to mediation,
including the cost of such mediation process. The MMC also
has the responsibility to provide mediation workshops and
training programmes for lawyers in the practice of mediation.
The Alternative Dispute Resolution (ADR) Committee is
responsible for the proper functioning and implementation of
the MMC’s objectives.
The MMC offers mediation services, assists and advises on
how to get the other side to agree to mediation if one party
has shown interest, and provides mediation training for those
interested in becoming mediators and accredits and maintains
a panel of mediators.
The mediators of the MMC are subject to a code of conduct
which requires impartiality and confidentiality. The MMC has
its own rules for purpose of accreditation of mediators. The
mediators must be practising members of the Malaysian Bar of
at least seven (7) years standing and have completed at least
40 hours of training, conducted and organised by MMC, and
must have also passed a practical assessment conducted by
the MMC’s appointed trainer.
The MMC will recommend a suitable mediator acceptable to
the parties, by taking into account the nature of the dispute,
expertise of the mediator and other special requirements of
the parties.
When would Mediation be Suitable?
The parties should always consider mediation as their first
choice for resolving their disputes. Mediation works best if
parties have a genuine desire to resolve their differences, have
a give-and-take attitude, are prepared to discuss their problems
and are willing to work towards finding a solution. Mediation
is especially useful when there is a continuing relationship
between the parties, or when the relationship is important to
them. It is also suitable for disputes where there is room for
compromise. On the other hand, where parties are not willing
8
to settle the matter and insist on their views, positions or legal
rights, mediation would not be appropriate.
Is Mediation Cheaper than Litigation?
Mediation is certainly a much cheaper, more informal and
flexible method of resolving disputes. It is also faster. The
mediation process could take a few hours to few days until
the matter settles or concludes, depending how complicated
the matter is.
The cost of the mediation process is as follows:-
Quantum of Claim Mediator’s Fee per Party
RM100,000 and below RM500 per day or part thereof
RM100,001-RM250,000 RM750 per or thereof
RM250,001-RM500,000 RM1,000 per day or part thereof
RM500,001-RM750,000 RM1,250 per day or part thereof
RM750,001-RM1,000,000 RM1,500 per day or part thereof
RM1,000,001-RM2,000,000 RM2,000 per or part thereof
RM2,000,001-RM3,000,000 RM2,500 per day or part thereof
RM3,000,001-RM5,000,000 RM3,000 per day or part thereof
RM5,000,001-RM10,000,000 RM4,000 per day or part thereof
Above RM10,000,000 RM5,000 per day or part thereof
NB: The mediator’s Scale of Fees is subject to change from time to time
Administrative Charge-RM300**
** The Administrative Charge and Room Rental Rates are shared by the
parties on an equal basis.
(Source: MMC)
Mediation has been Recognised and Promoted in
Many Countries
Mediation has not received much publicity in Malaysia. Even
the smallest claims are often brought before the courts. More
seminars and workshops would need to be conducted to educate
the public as well as lawyers on the benefits of mediation.
Lawyers should try to encourage their clients to have their
disputes resolved through mediation. Meanwhile, clients should
be made aware of the benefits of mediation. In the US, lawyers
would be committing legal malpractice if they fail to explore
opportunities with their clients. Even in Australia, lawyers may
be found guilty of negligence if they fail to advise their clients of
the availability of mediation in settling disputes. Lawyers should
also be encouraged to adopt mediation clauses in their contracts
and agreements.
The judiciary may also play an important role in fostering
disputants to use mediation as a means of resolving disputes.
In England, lawyers representing parties in all High Court
actions are required to lodge a pre-trial checklist, which would
indicate whether they have discussed with their clients the
possibility of attempting to resolve the dispute by any of the
 legalTAPS
alternative dispute resolutions. In 1996, the Singapore
Mediation Centre was set up at the Singapore International
Arbitration Centre. When a case is filed in court, the registrar
may refer parties to pre-court based mediation or arbitration.
In 2000, the Chief Justice of Singapore announced the latest
service for online mediation and virtual e-commerce dispute
involving substantial property or legal rights and their review on
resolution, the purpose of which is to establish a comprehensive
any settlement agreement before the disputants sign on it.
dispute resolution framework for e-commerce and online
transactions. Most of the American courts have rules that How can a Lawyer Help with Mediation?
require cases to be referred to mediation first before they can
Propose Mediation to the Other Side - Lawyers can help by
be listed for trial. Retired judges should also be encouraged
proposing mediation to the opponents’ lawyers. This is helpful
to become mediators. Their knowledge and experience would
especially when the lawsuit has turned nasty and disputants
be appreciated in the mediation process.
are not ready to swallow their pride and ask the other side to
The legislative role in promoting the use of mediation as a come to the bargaining table.
means of resolving disputes is by no means any less significant.
Help to find a Mediator - Chances are good if a lawyer
In 1998, the US Congress recognised ADR and mediation by
can propose a mediator who is experienced to handle the
amending Title 28 of the United States Code (federal statutory
dispute.
law) with respect to the ADR process. On 1 August 2000, the
Supreme Court Act of New South Wales was amended to allow Explain and complete Mediation Paperwork - Lawyers
matters to be referred to mediation even without the consent of can help to write statements describing the dispute and
the disputants. In New Zealand, as announced by the Attorney explaining how parties would like to resolve it. Lawyers can
General in 2000, mediation has become the primary source of also explain on mediation documents.
dispute resolution (as opposed to litigation) in New Zealand.
Prepare Parties for Mediation - Lawyers can explain how
In England, a new procedural code was enacted as a fillip to
the mediation process works, help the parties to organise
alternative dispute resolution. There have been a number of
their thoughts into a coherent story for the mediator and make
recent decisions where parties have been penalised for their
suggestions of things to tell to the opponent as well as things
reluctance to mediate.
that the other party might want to keep.
Mediation is an alternative dispute resolutions to reduce the
Evaluate Settlement Options - Lawyers can help to evaluate
backlog of cases in the courts. Therefore, the government
the terms based on the chances of succeeding in court, the
should encourage mediation as an ADR by establishing
value of the claims and legal arguments for and against
institutions for training people on mediation or other ADR
the position. Lawyers can also alert the parties to potential
procedures. Mediation courses should be promoted in
problems with the proposed settlement.
universities and institutions of higher learning to create a new
breed of trained people who would be capable mediators. In Write a Binding Agreement - When disputants reach an
Singapore, a specialised workshop is organised to train lawyers agreement in mediation, lawyers can help by putting the
with the skills required for mediation. said agreement in writing. Lawyers can make sure that the
written agreement reflects the settlement reached during the
Duty of Parties to Reach Settlement
mediation, and that the agreement can be enforced if either
Mediation allows the parties to discuss their views and needs party does not honour its terms.
in the process. In order to resolve the problems faced by
Conclusion
disputants, a basic understanding and appreciation of the
fundamental concepts of mediation is vital. Lack of such Mediation plays a paramount role in our society and is an
commitment would make mediation meaningless and inefficient alternative choice to going to court to resolve problems. As
Woodrow Wilson once said, “a dispute is a problem to be
as a means of resolving problems.
solved, together, rather than a combat to be won.”
How do Parties reach a Settlement?
Parties reach a settlement on their own. The mediator’s role By the firm’s pupils in chambers
is to facilitate the process of reaching that goal. The mediator Elizabeth Choong
will draw up the terms of the settlement and if the dispute is (yeechuin.choong@taypartners.com.my) and
Leong Pei Lee
in Court the terms ought to be recorded before the judge to (peilee.leong@taypartners.com.my)
secure the position of the parties. For more information on this article, or on
‘mediation’ or ‘alternative dispute resolution’, you
Do we still need Lawyers in Mediation? may contact:
Leonard Yeoh
In most mediation, we do not need to have a lawyer to (leonard.yeoh@taypartners.com.my)
participate directly. Nonetheless, there are some cases in Asmet Nasruddin
(asmet@taypartners.com.my)
which we may still need to turn to a lawyer for advice, i.e. cases

9
 Acquisitionof
Acquisition ofProperties
Propertiesin
inMalaysia
Malaysiaby
by
Foreigners--Recent
Foreigners RecentRulings
Rulings
On 1st November 2006, the Foreign Investment Committee
(‘FIC’) relaxed one of its rules and now permits foreigners to
acquire a property exceeding the value of RM250,000 without
having to apply for approval from the FIC. However, this is
subject to the property being acquired for own personal use,
and not for purposes of renting out or investment.

In other words, if a foreigner intends to acquire a piece of

property (be it a house, commercial unit or a piece of land) of
any value exceeding RM250,000 for his own occupation or use,
or guidelines of the State in which the property is situated.
he does not have to apply to the FIC for prior approval.
A foreigner is any person who is a non citizen of Malaysia
or a company with 50% or more of its shareholdings foreign
This ruling, although much welcomed, was not enough
owned.
to encourage foreigners to acquire property (residential
or otherwise) in Malaysia in view of the qualification that the
Certain states impose a levy fee for granting the approval to
property must be for own use and not for rent.
a foreigner to acquire property other than industrial property.
The levy fees currently imposed for each property approved
by some of the states are as follows:

1) Johor state ............RM10,000;

2) Perak state............ RM5,000;

3) Melaka state.......... RM3,000;

4) Penang state .........RM1,000

In another bid to boost the property market, the FIC further
relaxed the ruling on the 21st of December 2006, by lifting
the qualification in respect of residential property. Effective
Some states like the Selangor state and the Pahang state, and
the Federal Territory of Malaysia (of which Kuala Lumpur,
Putrajaya and Labuan are part of) which is governed by the
federal government of Malaysia, do not impose any levy fee.
Although the FIC will consider applications for acquisition of

21st December 2006, foreigners can acquire any residential agricultural land, certain states like Johor and Melaka have clear

property exceeding RM250,000 per property without having to written guidelines that no approval will be granted for acquisition

apply for any FIC approval. There is no limitation on how many of agricultural land by a foreigner. It is therefore prudent to seek

residential properties a foreigner can acquire. legal advice prior to committing to a purchase.

However, the qualification on non residential property still
remains. A foreigner who wishes to buy a non residential unit
exceeding RM250,000 for investment purpose and not for his
own use, will still have to apply to the FIC for approval.
Apart from the issue of FIC approval, as land matters come
under the jurisdiction of the State in which the property is
situated, the acquisition of any property (whether residential
By Lau Lee Jan (leejan.lau@taypartners.com.my)
Lee Jan manages the firm’s Johor Bahru
Office. She is engaged in commercial,
corporate, real property and finance
practice.
For further information and advice on
the article above, you may contact the
author.

or otherwise) by any foreigner is also governed by the rules

10

Restrictions Emasculated
It was only in November that the Central Bank of Malaysia
(BNM) first revealed a hint of things to come. It had then lifted
the number of prospective acquiring parties that shareholders
of a licensed banking institution are permitted to negotiate at
any particular time. Before that refreshing announcement, BNM
had a policy of restricting substantial shareholders of local
banking institutions licensed under the Banking and Financial
Institution Act 1989 (BAFIA) to talk and negotiate to only one
party at a time on any possible acquisition or disposal of stake
in the licensed banking institution. Following the announcement,
BNM will now, upon receipt of an application, allow concurrent
negotiations by shareholder with multiple parties at any single
point of time.
BNM appears to be far from done. Amidst the exciting news
surrounding the mega mergers in the plantation sector in the
business section of most local dailies, BNM supplied more
exciting announcements at the turn of this year.
The latest announcement was two fold. First, BNM lifted
investment restrictions of licensed banking institutions.
Previously, licensed banking institutions were allowed to
acquire 5% of shares in any company listed on the stock
exchange only. By removing that cap, licensed banking
institutions are henceforth allowed to invest up to 25% of their
capital base in all types of shares, viz, shares listed on the
stock exchange, preference shares, shares not listed on the
exchange and foreign equities.
Secondly, licensed banking institutions are now free to hold
shares in other licensed banking institutions, albeit with a limit.
Before 2007, BAFIA totally prohibits one licensed banking
institution from holding shares in another licensed banking
institution or its subsidiary. With this announcement, licensed
legalTAPS
The latest announcement was two fold.
First, BNM lifted investment restrictons
of licensed banking institutions. ...
Secondly, licensed banking institutions
are now free to hold shares in other
licensed banking institutions,
albeit with a limit.
banking institutions are allowed to hold up to 5% stake in other
licensed banking institutions.
As a whole, the announcements were well received by most
quarters in Malaysia. Apart from demonstrating the maturity of
the Malaysian finance system and its transition into a more de-
regulated environment, the moves made by BNM also confer on
licensed banking institutions greater flexibility in respect of their
investment policies and activities inside and outside of Malaysia.
Evidently, 2007 only promises more excitement from BNM.
Entrepreneurs and investors alike can only expect more
encouraging and welcoming news from the Governor’s office
in Jalan Dato Onn, especially, in the sector of Islamic Finance.
Watch this space for more updates.
Note: This article was recently published in issue 7.2 of the Asian
Legal Business.
By David Lee (david.lee@taypartners.com.my)
David is a Senior Associate at the firm and focuses mainly
on mergers and acquisitions, foreign investments, capital
markets and debt markets.
For further information and advice on corporate, commercial
and M&As, you may contact:
Tay Beng Chai (bengchai.tay@taypartners.com.my)
Chang Hong Yun (hongyun.chang@taypartners.com.my)
11
 ATMD - From Across the Causeway
Future Enterprises Pte Ltd v
McDonald’s Corp
This was an appeal to the Singapore High Court by Future The PAR allowed the opposition on the ground that the
Enterprises Pte Ltd (“Future”) against the decision of the MacCoffee mark was similar to the McCAFE mark such that
Principal Assistant Registrar (“the PAR”) of the Intellectual there was a likelihood of confusion on the part of the Singapore
Property Office of Singapore. public. The PAR was of the view that:-

This was not the first time the parties had crossed swords. a)
Previously, the parties had battled over Future’s application
for registration of three marks, namely:-
b)
(a) “MacNoodles & device” for “instant noodles”;
c)
(b) “MacTea & device” for “instant tea mix”;
the MacCoffee and McCAFE marks were visually, aurally
and conceptually similar;
the goods were similar; and
a substantial number of average Singaporeans would be
likely to be confused by the MacCoffee mark.

(c) “MacChocolate & device” for “instant chocolate mix”. Similarity of Marks

In the previous litigation, Future emerged victorious, with the

In the Grounds of Decision issued by the PAR, the PAR said
Singapore Court of Appeal dismissing the oppositions filed by
that:-
McDonald’s Corp (“McDonald’s”) against the above marks.

In the current proceedings, Future had filed an application to

register the mark MacCoffee “the MacCoffee mark”) for the
following Class 30 goods:-
Coffee; tea; cocoa; coffee based beverages; artificial coffee;
cappuccino; cereal preparations (including instant cereal in
powder form), ice cream, prepared meals, confectionery,
namely candies, sweets, lollipops, liquorice, lozenges,
pastilles; cakes, bread, biscuits, jellies (confectionery)
puddings; pastries; snack foods products made from
processed flour preparations and potato flour; cookies; snack
food products made from corn; snack bars containing dried
“The E in McCAFE has an accent above it (the diacritical
mark), but visually this is a difference which likely to be
unnoticed by the average consumer. The marks begin
with the letter M which stands for Mc in the Opponents
mark and Mac in the Applicants mark and end with the
words café and coffee. In both marks, the capital letter
C in the centre divides the first and second parts of the
and
marks such that the impression is not of one word but
of two words put together... Considering the total visual
impression of the marks McCAFE and MacCoffee, I am

fruits and nuts (confectionery); cereal-based food bars; rice
crackers; muesli bars; wafers.
McDonald’s filed an opposition against the mark based on
its prior registration for McCAFE in Class 30 (“the McCAFE
mark”) for:-
of the view that there are sufficient visual similarities to
override the differences submitted by the Applicants
- that the prefixes Mc and Mac and the suffixes Cafe
and Coffee are different...Aurally, both marks have
three syllables. The two prefixes are homonymous and

synonymous... The concept between the two marks is

edible sandwiches, meat sandwiches, pork sandwiches, fish similar. Whether they relate to the beverage or the place
sandwiches, chicken sandwiches, biscuits, bread, cakes,
where such beverage is sold and consumed, the idea of
cookies, chocolate, coffee, coffee substitutes, tea, mustard,
coffee is evoked in the minds of the public.”
oatmeal, pastries, sauces, seasonings, sugar.

12
 legalTAPS
Future had submitted that a café is understood by English
speaking Singaporeans as a place where one drinks coffee and
coffee is understood as a reference to the drink. McDonald’s
submitted that café also means coffee in French. The PAR held
that an average person will be slow to notice the difference
between the words café and coffee in terms of the meaning
of the words. This is especially so since the mark McCAFE is
registered for coffee and may be used on coffee. Additionally,
it is not the conceptual difference between café and coffee that
should be considered but the conceptual difference between
McCAFE and MacCoffee.

The High Court judge agreed with the PAR’s basis of

comparison of the marks based on the three hallmarks of
similarity, namely the visual, aural and conceptual aspects. Likelihood of Confusion

... an average person will be slow to
notice the difference between the words
café and coffee in terms of the meaning
of the words. ... It is not the
conceptual difference between café and
coffee that should be considered but the
conceptual difference between McCAFE
and MacCoffee.
The High Court judge held that both Future’s and McDonald’s
goods (assuming that McDonald’s does make use of the
McCAFÉ trade mark “in a normal and fair manner”) are likely
to appear in the same shopping mall, suburban or otherwise.
The Court held that the type of customers likely to purchase
Future’s goods is also not likely to be vastly different from those
of McDonald’s goods.
Like the PAR, the High Court judge was satisfied that there
exists a likelihood on the part of the public.
The High Court accordingly upheld the decision of the PAR and
dismissed Future’s appeal.

This victory in Singapore is certainly the latest feather to the

cap of the American fast food restaurant in its attempts to weed
Similarity of Goods
out companies riding on its goodwill.

Although Future’s application for registration was originally

for a broader class of goods, at the end of its submissions
before the PAR, it indicated that it was willing to restrict the
specification of goods to “instant coffee mix” only. The PAR
therefore decided the opposition before her on the basis that
if the application succeeded, it would be allowed with such
a restriction as to the specification of goods because, if the
broader original specification of goods was considered, the
goods of the parties would be more similar. On that basis, she By Pearleen Loh
held that the goods of both parties were similar if not identical (pearleenloh@atmdlaw.com.sg) of
ATMD, Singapore
as the MacCoffee and McCAFE marks included coffee.
For more information on this article,
The High Court judge agreed with the PAR’s assessment you may contact the author.
that the basic product in both cases is coffee. Accordingly,
the goods are similar.

13
 Do Costs Always
“ Follow The Event ”?
It is widely accepted that generally, in litigation and Courts have in previous cases interpreted these two
arbitration, costs “follow the event” i.e. a successful party instances to include:
is entitled to be compensated by the unsuccessful party for
* Unsatisfactory conduct by a party in the course of
costs incurred in the proceedings.
the litigation, such as non-compliance with directions
There are, however, exceptions to this rule and this article made.
aims to discuss some of the exceptions.
* Unreasonable or obstructive conduct leading to wasted
It is worthwhile to note, at the outset, the general principles time at an oral hearing, protracted proceedings, or
governing the award of costs in dispute resolution increased costs by the other party.
proceedings:
* Gross exaggeration of claims.

(a) Costs are in the discretion of the court or tribunal * Failure by the successful party on issues on which a
large amount of time was spent.
(b) Costs generally follow the event.

* Extravagance in the conduct of the hearing, for

(c) However, sometimes the court or tribunal can be per-
example, employing an excessive number of
suaded that some other order should be made, for example,
counsels or expert witnesses, and furnishing
where the terms in a “sealed offer” or Calderbank Offer”,
unnecessary evidence over irrelevant issues or
“Payment into Court” or “Offer to Settle” are relevant.
excessive evidence over non-substantive issues.
(d) Where there are certain special circumstances or
* Unreasonable refusal to accept an offer made by one
exceptions (which we will refer to below), the court may
party before or during the proceeding to compromise
also deviate from the general rule and order the successful
the dispute.
party to bear the whole or part of its own costs and/or pay
the whole or part of the unsuccessful party’s costs. In a nutshell, the court in exercising its discretion may
consider (a) conduct which protracts time taken for the
“Special Circumstances” litigation, or (b) conduct which increases the expenses by
the other party.
Two instances of “special circumstances” which allow the
court to depart from the “costs follow the event” rule are The court in Jet Holding Ltd and Others v Cooper
Cameron (Singapore) Pte Ltd and Another [2006] SGHC
as follows:
20 explained the reason for departing from the general
1. Where the successful party raises issues or makes rule:
allegations on which he fails, and that has caused
“Courts have been known to deprive a successful
a significant increase in the length or cost of the
proceedings; he may be deprived of the whole or part party of full costs because it was responsible for

of his costs. some “wasted costs”. The court’s approach as to

costs is intended to influence the manner in which

2. Where the successful party raises issues or make
litigants advance or defend their case. Litigants have
allegations improperly or unreasonably, the court may
not only deprive him of his costs but also order him to be focused and selective in the points taken, for

to pay the whole or a part of the unsuccessful party’s it is decidedly foolhardy to assume that they will be
costs. able to recover full costs as long as they win.”

14

The same sentiments were expressed in Khng Thian
Huat and another v Riduan bin Yusof and another
[2005] 1 SLR 130:
“[A] successful party may be deprived of his costs
in full or in part, if [his] conduct has been sufficiently
blameworthy. Disallowing his entitlement to costs
is one way that the court can effectively express
its view of the misconduct of the successful party
during the pre-litigation or litigation process and
show its displeasure. In an exceptional case, the
court may even order the successful party to pay
the costs of the unsuccessful party.”
Ultimately, the decision on costs is in the discretion of the
judge upon considering the “special circumstances” of each
case. However, the judge is not exempt from complying
with rules of natural justice (such as giving both parties the
right to be heard) and the duty to act judicially. The High
Court cautioned in Denis Matthew Harte v Dr Tan Hun
Hoe & anor [2001] SGHC 19:
“How then is the discretion on award of costs to be
exercised? ...
Although the court has an unfettered discretion to make
whatever cost order the justice of the case demands, this
discretion obviously cannot be exercised arbitrarily, or
on extraneous grounds and irrelevant considerations. It
must be exercised judicially guided by established rules
and principles.”
Complex Cases
“Costs following the event” may be a useful overall guide
in straightforward and simple cases. However, where
parties are divided on a multitude of legal, jurisdictional or
complex factual issues which are difficult to determine, a
strict arithmetic allocation of costs based on the outcome
of the case may not produce a just result.
Firstly, it is rare for the successful party to have been wholly
successful on all the issues in dispute. In arbitration,
where no party has substantially prevailed, arbitrators
commonly order each party to bear its own costs and half
of the procedural costs.
Secondly, even where the court decides to order some
contribution towards the successful party’s costs, there is
the problem of deciding upon what basis, and when, this
contribution should be assessed.
The “loser-pays” rule does not seem to have emerged as
legalTAPS
the universally recognised principle for the treatment of costs
in international commercial arbitration. The most widely
used “truly international” arbitration rules do not require a
tribunal to award costs to the successful party. For example,
the International Chambers of Commerce (ICC) Rules are
silent on cost allocation inasmuch as Article 31(3) does not
offer any criteria determining which party should bear the
costs of arbitration. In the absence of any guidelines in the
ICC Rules, the matter is left to the absolute discretion of
the arbitrators. Article 40(1) of the UNCITRAL Rules adopts
the principle that costs follow the event with regard to
procedural costs. However, Article 40(2) omits any
reference to the outcome of the proceedings with regard
to legal costs. Rather, it expressly states that the tribunal is
free to decide on such costs as it sees fit, suggesting that as
far as legal costs are concerned, the outcome on the merits
does not serve as the prevailing yardstick.
Therefore, in cases where the number and complexity of
issues simply do not justify the application of an unspecific
“costs follow the event” rule, judicial pragmatism coupled
with “intuitive fairness” may be a better method to
apportion costs.
In Khng Thian Huat, the High Court recognised that:
“The usual direction is for costs to follow the event. However,
in some cases such as this, there is no clear demarcation
as to which party has been successful on an overall basis. A
sterile issue-based approach or a pure time-based approach
might create mathematical partisanship that will not embrace
the entire spectrum of discretionary factors inherent in trial
proceedings. The assessment of costs ought not to be a
clinical scientific exercise divorced from considerations of
intuitive fairness. The court almost invariably ought to “look
at all the circumstances of the case including any matters
that led to the litigation”.
By Naresh Mahtani
(NareshMahtani@atmdlaw.com.sg)
and
Connie Yao (ConnieYao@atmdlaw.com.sg)
of ATMD, Singapore
15
 Legal TAPs is a collective

legalTAPS
effort of the firm to bring
relevant legal updates and
information to you.

Editorial Committee Tay & Partners

Kuala Lumpur Office
Neoh Lay Choo 6th Floor Plaza See Hoy Chan
Jalan Raja Chulan
Melanie Ann Selvalingam
50200 Kuala Lumpur, Malaysia
Shaikh Mohamed Noordin Tel: 603 2050 1888
Su Siew Ling Fax: 603 2072 6354
Tay Beng Chai Email: mail@taypartners.com.my
Leonard Yeoh
Johor Bahru Office
This publication provides a sum- Suite 15.02, 15th Floor
mary only of the subject matter Menara MAA,
covered and is not intended to be 15, Jalan Dato’ Abdullah Tahir,
nor should it be relied upon as a 80300 Johor Bahru, Malaysia
substitute for legal or other profe- Tel: 607 331 6136
sional advice. Fax: 607 332 2898
Email: mail_jb@taypartners.com.my

T & P Announcements and News

Geraldine Chan joins the Corporate & Commercial Practice Group as a Senior Associate. Geraldine has
experience working on cross border transactions within the Asian region relating to acquisition of shares,
assets or businesses of companies, mergers and acquisitions of or by private and public limited companies,
and issuance of private debt securities.

Genevieve Lau joins the Corporate & Commercial Practice Group as an Associate. Genevieve practises in
the area of corporate, commercial and financial related work and due diligence exercises.

Sia Teng Teng joins the IP & Technology Practice Group as an Associate. Teng Teng practises in the areas
of Intellectual Property Laws.

Leonard Yeoh, our Partner in the Litigation and Dispute Resolution Practice Group presented a paper on
Termination Management Process at a conference on ‘Employment Law & Contracts’ organised by Asia
Business Forum at the JW Marriott Hotel in Kuala Lumpur from 10 to 11 January 2007. Leonard chaired the
first day of the conference on Construction Contracts organised by Asia Business Forum from 5 to 6 February
2007 at the JW Marriott Hotel in Kuala Lumpur.

Asmet Nasruddin, our Partner in the Dispute Resolution Practice Group attended the UNCITRAL - Kuala
Lumpur Regional Centre for Arbitration Conference on ‘30 years of the UNCITRAL Arbitration Rules’ from 21 to
22 November 2006 at the Prince Hotel in Kuala Lumpur. He presented a paper on Alternative Dispute Resolution
at a conference on Construction Contracts organised by the Asia Business Forum from 5 to 6 February 2007
at the JW Marriott Hotel in Kuala Lumpur. Asmet attended the 10th International Bar Association International
Arbitration Day in Madrid on 2 March 2007 and has been appointed to the International Bar Association’s
Arbitration Sub-Committee on Recognition & Enforcement of Arbitral Awards. He has also been appointed to
represent the Malaysian International Chamber of Commerce & Industry on the Malaysian Standards Body
(SIRIM)’s Industry Standards Committee for Organisational Management.

Su Siew Ling, our Partner in the IP and Technology Practice Group was a panelist at a seminar jointly organised
by the Federation of Malaysian Manufacturers, the US Embassy and the US Patent and Trademark Office, on
the economic importance of IP to enhancing the Malaysian economy, held at Wisma FMM in Kuala Lumpur
on 23 January 2007. She was also the chairperson at a conference on ‘Key Strategies to Manage and Protect
Your IP’ on 12 March 2007, held at the JW Marriott in Kuala Lumpur.

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